MR R H SYED v DEPARTMENT OF SOCIAL SECURITY [2002] UKEAT 0732_01_2603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 0732_01_2603Case No Appeal No. EAT/0732/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R H SYEDAPPELLANTDEPARTMENT OF SOCIAL SECURITYRESPONDENT
Before
His Honour Judge Peter Clark Ms N Amin Mr T C ThomasDate 26 March 2002
[1]APPEARANCES For the Appellant ANNA THOMAS (of Counsel) For the Respondent MS I SIMLER (of Counsel) Instructed By: Office of the Solicitor Department for Work and Pensions 5th Floor Sutherland House Surrey SM2 5AN JUDGE PETER CLARK: This is an appeal by Mr Syed, the Applicant before the London (Central) Employment Tribunal, against a decision of that Tribunal (chaired by Mr D H Roose) promulgated with extended reasons on 18 April 2001, dismissing his complaint of unlawful deductions from wages brought against his employer, the Department for Work and Pensions (formerly the Department of Social Security) on the grounds that it was time-barred.[2]Background This was a hearing of a preliminary issue, that is, whether the claim was time-barred. In order to answer that question it is first necessary to identify the cause of action, here unlawful deductions from wages. As the majority of the Court of Appeal in New Century Cleaning Co Ltd v. Church [2000] IRLR 27 made clear, by section 27(1)(a) of the Employment Rights Act 1996 ERA wages mean: "any fee, bonus…or other emolument referable to his employment, whether payable under his contract or otherwise" and the words "under his contract or otherwise" entail some legal, not necessarily contractual entitlement to the dispute of payment. As in that case, it is apparent that Mr Sayed could rely only on a contractual entitlement to payment.[3]Part of the dispute of payment in this case relates to backdated pay for a period prior to 5 April 1999. It arose in this way, taking the facts from the evidence of the Applicant and his trade union representative, Mr Ford.[4]The Appellant commenced employment with the Respondent on 4 May 1993. At all relevant times he has been employed in the substantive post of Administrative Officer Grade. In May 1997 he moved to the visits section of the then Ealing District of the then DSS Benefits Agency. He is a member of the Public and Commercial Services Union (PCS). Mr Ford was the branch secretary of PCS covering the Ealing office. He is employed at the Acton office.[5]From 1996 the union was in dispute with management's proposals to re-organise the grading of work done by visiting officers. The complaint was that executive officer (EO) duties were being downgraded to the AO staff without paying to AO's the rate for the work being done.[6]Following lengthy negotiations on 1 December 1999 management issued a notice that agreement had been reached with the trade union side to re-grade certain new claimant visiting work to the EO grade, such agreement to be implemented on 1 February 2000.[7]Prior to implementation the union, through Mr Ford, claimed that affected AO staff who had been doing EO grade work ought to receive back pay to reflect that fact. The payment is known as the Higher Duty Allowance (HDA). On 5 June 2000 management agreed to back payments being made as far back as 5 April 1999. The union pressed for back-payments earlier than that date but management would not agree.[8]On 19 October 2000 (misdated 1999) Mr Ford wrote to the Area Director, Mr Whitehead, registering disagreement against management's refusal to pay (HDA) prior to 5 April 1999. He further intimated that complaints of unlawful deductions from wages would be made to the Employment Tribunal. That claim was not accepted by the Respondent and Mr Syed's complaint was presented on 20 December 2000. Other AO's have also presented complaints, which are currently stayed pending the outcome of this appeal. It is common ground that collective agreements reached through the negotiating machinery are incorporated into the individual contracts of employment of affected staff.[9]The Claim On the face of it, the form IT1 Particulars of Complaint related to the NDA back-pay issue. However, at the Employment Tribunal Mr Ford produced a detailed written submission which, Ms Simler, who appeared below accepts, widened the apparent scope of the unlawful deductions claim. The enlarged claim, if we may call it that, is helpfully summarised at paragraph 15 of Mr Ford's submission thus:
"This claim relates to a series of deductions by the employer amounting to the: difference in earning for the period 12 May 1997 to 1 April 1999 shortfall in earning from pay progression for period 12 May 1997 to 18 December 2000 shortfall in his contributions to his Principal Civil Service Pension Scheme" "
We shall refer to those heads as the 1 st , 2 nd and 3 rd grounds of claim. That summary feeds back to paragraphs 2 – 5 of the written submission, which are headed "The Applicant's Claim"[10]The Tribunal Decision It appears that the Tribunal acknowledged the existence of the enlarged claim. At paragraph 5 of their reasons under the heading "The Applicant's Case," they say this:
"The Applicant's case first related to the period 12 May 1997 to 1 April 1999 for which no backdating provisions were agreed. The second period was from 12 May 1997 to 18 December 2000 where some shortfall was alleged. The Applicant pointed to the details of his pay as of 30 November 2000 and indicated that he had lodged his claim within three months of that date."
The Tribunal then referred to two Scottish decisions relied on by Mr Ford, who appeared below, but which are not material to our judgment in this appeal.[11]Put shortly, the Tribunal considered the first ground of claim and dismissed it as being time-barred; they did not expressly deal with the second and third grounds at all.[12]The Appeal The first ground of claim Picking through the Tribunal's somewhat unusual format for giving their reasons, we discern their principal findings under this head of claim to be as follows:(1) Negotiations between the Respondent and the unions over EO grade work, that is new claims visits, concluded in January 2000.(2) If the Appellant had a complaint in relation to an HDA payment about a deduction from wages it was a deduction on 31 January 2000(3) Alternatively, further negotiations over pre- 5 April 1999 back-pay concluded on 5 June 2000(4) In either event the deduction, if any, took place more than three months before the presentation of the Originating Application on 20 December 2000 and was outside the primary limitation period of three months (ERA section 23(2))(5) Although no submissions were received on behalf of the Appellant as to whether or not it was reasonably practicable for this complaint, brought under section 13(3) ERA, to be presented within time, they had considered that question and, bearing in mind that the Appellant was represented throughout by his union, which had access to specialist legal advice, the application was dismissed.[13]The Second and Third Grounds As we observed earlier, and as Ms Simler accepts, the Tribunal, having identified those further grounds of claim for determination then failed to make any relevant findings of fact or make any determination on those grounds.[14]Conclusion Despite Ms Thomas' best efforts on behalf of the Appellant, we are quite unable to discern any error of law in the Tribunal's approach to the first ground, as Ms Simler submits. Miss Thomas was unable to point to any basis in the evidence before the Tribunal, for a claim under this head. There was no legal entitlement to HDA back-pay pre – 5 April 1999. In these circumstances the Tribunal allowed of a hypothetical claim which was, on the evidence, out of time. They considered the question of reasonable practicability and, in the absence of any useful submission on behalf of the Appellant, concluded that he could not rely on the section 23(4) proviso.[15]We think, however, that the second and third grounds raise distinct issues different from the first ground. They ought to have been adjudicated on by the Tribunal but were not. On this footing the case must be re-heard on the second and third grounds only by a fresh Tribunal. We think that ought to be a full merits hearing and we so direct. It will not be limited to the issue of limitation only, although that point may be taken by the Respondent, if so advised.[16]For the purpose of the remitted hearing we shall give the Appellant permission to amend the Originating Application to set out with particularity his case on the second and third grounds, both as to the merits and as to its timeousness. Such a draft amended form of Originating Application will be lodged with the Employment Tribunal within 21 days of today; the Respondent shall have permission to lodge an amended form IT3, if so advised, 14 days after service of any such amended Originating Application.[17]It follows that this appeal is allowed in part.